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CRIMINAL CODE OFFENCES - Motor vehicles - Impaired driving or driving over the legal limit - Breathalyzer or blood sample demand - Certificate of analysis

Thursday, July 06, 2017 @ 1:13 PM  

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Appeal by Alex from a judgment of the British Columbia Court of Appeal affirming his conviction for impaired driving. Alex was stopped by the police who conducted a typical drinking and driving investigation. After he failed a roadside screening device test, the police officer demanded that Alex accompany the officer to the police station to provide samples of his breath. Alex complied and registered readings significantly over the legal limit. Accordingly, Alex was charged with driving “over 80”, contrary to s. 253 of the Criminal Code. To address the challenges posed by the large number of drinking and driving offences, Parliament had taken steps to simplify and streamline the trial process. Among these measures were the evidentiary shortcuts found in ss. 258(1)(c) and 258(1)(g) of the Criminal Code which permitted the Crown to establish an accused’s blood-alcohol concentration at the time of the alleged offence by filing a certificate recording the accused’s breath readings. In the case of “over 80” charges, this relieved the Crown from having to call the following two witnesses at every trial: (1) a breath technician to attest to the accuracy of the breath readings; and (2) an expert toxicologist to relate the readings back to the time when the alleged offence occurred. The issue in this appeal was whether the Crown had to establish that the demand for the breath sample made by the police was a “lawful” demand before it could take advantage of the evidentiary shortcuts. The trial judge found that the police lacked reasonable grounds to make the breath sample demand, but still permitted the Crown to file a certificate of analysis as proof of Alex’s blood-alcohol concentration at the time of the alleged offence. Successive appeals by Alex were dismissed.
HELD: Appeal dismissed. Parliament could easily have specified that the sample had to be taken “pursuant to a lawful demand”. There were many examples throughout the Criminal Code where Parliament had done just that. It was not clear that a plain reading of the provisions supported Alex’s position that the evidentiary shortcuts depended on a lawful demand. The overriding purpose of the evidentiary shortcuts, namely streamlining trial proceedings, would be frustrated by importing a lawful demand requirement. The role that s. 8 of the Canadian Charter of Rights and Freedoms (Charter) fulfilled in relation to unlawful breath demands was consistent with the approach taken when the police failed to comply with the requirements of other statutory provisions governing their authority. By contrast, a loss of the s. 258 evidentiary shortcuts did not provide a meaningful remedy for an unlawful demand by the police. While the refusal offence was part of the same statutory regime, it was different from other drinking and driving offences in substance. Culpability for the refusal offence was based on disobedience with lawful compulsion, whereas culpability for an “over 80” offence was based on driving with a blood-alcohol concentration over the legal limit. The lawfulness of the breath demand had no logical bearing on culpability for an “over 80” offence. When ss. 258(1)(c) and 258(1)(g) were analyzed in accordance with the modern principles of statutory interpretation, the Court was satisfied that the Crown need not prove that the demand was lawful in order to take advantage of the shortcuts. The trial judge, the British Columbia Supreme Court and the Court of Appeal correctly concluded that a lawful demand was not a precondition to the s. 258 evidentiary shortcuts.

R. v. Alex, [2017] S.C.J. No. 37, Supreme Court of Canada, B. McLachlin C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, R. Wagner, C. Gascon, S. Côté, R. Brown and M. Rowe JJ., July 6, 2017. Digest No. TLD-July32017011SCC